RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 January 2008
	DOCKET NUMBER:  AR20070015057 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mr.  Rial D. Coleman

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Thomas M. Ray

Member

Mr. Jeffrey C. Redmann

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that she is entitled to an honorable discharge because she had no previous disciplinary infractions and was not afforded an opportunity to enter into a drug rehabilitation program.

3.  The applicant provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows she enlisted in the Army at the age of 22, on
29 March 1985 and served until her separation on 10 February 1989.  She completed basic combat training and advanced individual training.  Upon completion of advanced individual training, she was awarded the military occupational specialty 71L (Administrative Specialist).  The highest rank she attained while serving on active duty was specialist/pay grade E-4.

3.  Alcohol and Drug Abuse Prevention and Control Program (ADAPCP), Fort Bragg Form Letter 223, dated 18 January 1989, informed the applicant's unit commander that biochemical testing results show she tested positive for the use of marijuana and cocaine.


4.  On 18 January 1989, the unit commander advised the applicant that he was recommending her discharge under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 14, Section III, Paragraph 14-12c for misconduct-abuse of illegal drugs.  The commander also informed the applicant that he was recommending a general discharge, that she had the right to consult with legal counsel, and that she could submit written statements on her behalf.

5.  On 19 January 1989, after consulting with legal counsel, advised of the basis for the contemplated separation, its effects and the rights available to her, the applicant expressed her desire to submit statements in her own behalf.

6.  The applicant's record contains a one-page self-authored statement emphasizing her duty performance and achievements.  The applicant's statement also pointed out the fact that she had been tested for drug use on three occasions since arriving to the unit and never tested positive until recently.

7.  The applicant's record contains six one-page statements submitted by noncommissioned officers in behalf of the applicant.  The authors of these statements, in effect, indicated that the applicant was a good worker who should be retained on active duty.

8.  On 27 January 1989, the unit commander recommended that the applicant be separated under the provisions of paragraph 14-12c of Army Regulation 635-200 for misconduct-abuse of illegal drugs.  The basis of this request was the fact that the applicant tested positive on a urinalysis test administered on 5 January 1989.

9.  On 1 February 1989, the separation authority directed the applicant’s separation under the provisions of Chapter paragraph 14-12c of Army Regulation 635-200 and the issuance of a General Discharge Certificate.

10.  On 10 February 1989, the applicant was discharged accordingly.  The DD Form 214 issued to her at the time, confirms the applicant completed a total of 
3 years, 10 months, and 12 days of creditable active military service.  Item 24 (Character of Service) of the DD Form 214 also shows "UNDER HONORABLE CONDITIONS (GENERAL)."


11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that she is entitled to an honorable discharge because she had no previous disciplinary infractions and was not afforded an opportunity to enter into a drug rehabilitation program were carefully considered and determined to be without merit.

2.  Biochemical testing results show the applicant tested positive for the use of marijuana and cocaine.  There is no indication in the applicant's record that she ever denied the use of drugs or requested admission into a drug rehabilitative treatment program.

3.  The issuance of a discharge under other than honorable conditions is normally considered appropriate for substance abusers.  By issuing a general discharge under honorable conditions, it is evident that the applicant's separation approval authority took her past duty performance into consideration and was lenient in his decision.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement and there is no basis for granting her request.

5.  Given the above, the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  The Board found no evidence of arbitrary or capricious actions by the command.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEV____  _TMR __  _JCR____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





__James E. Vick__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.